an open-source thought experiment in psychedelic law and policy

Save us from the doctors

A recent op-ed in the Times Union (Albany) demonstrates the essential logic of the camp arrayed against therapeutic uses of psychedelics: society must be protected from the doctors. Keep control over psychedelics in the hands of the police.

The op-ed calls for all reasonable men to oppose the proposed medical marijuana law because of the clear and present dangers which it poses to society. Again, as stated in previous posts, a minimal familiarity with the law reveals that the arguments presented are utterly irrelevant to the proposed regulatory scheme.

The op-ed recites the standard litany of reasons to make sure that no one ever uses cannabis for any reason under any circumstances – it is simply too dangerous for society to withstand. Witness Los Angeles – everyone knows that Los Angeles has descended into chaos due to the onslaught of medical marijuana dispensaries. The Los Angeles city government is finally taking action to protect the citizenry. New York should avoid that horrific experience entirely.

The op-ed is most perplexing in its disregard for the actual mechanism of the proposed law because the author, Mr. Turetzky wrote as a representative of the Respect for Law Alliance, which is composed of extremely distinguished personages, including some very distinguished members of the judiciary. I would be extremely disappointed to believe that they, as accomplished jurists, could in good conscience have approved the legal reasoning which the Alliance has taken publicly.

There are the standard arguments that appear everywhere: marijuana is a gateway drug, it is dangerous to the lungs and brain, it is more potent than in the past, and it needs to be studied more before anyone should be allowed to use it. [Incidentally, the ‘needs more study’ position does not necessarily mean ‘assess whether it has therapeutic potential and, if so, what kind’ – if the federal government had wanted to do such studies, it would have appropriated money to conduct them long ago; the studies in question presumably focus on addictive potential and toxicity.]

However, there are some truly fascinating and revealing arguments that appear in the context of the op-ed’s total ignorance of the actual elements of the proposed law. This author believes that the most telling complaint is that:“Contrary to the allure of a potential huge new source of tax revenue from the legal sale of cannabis, legalizing medical marijuana will shift the burden of monitoring its safe manufacture and distribution to the state Health Department.”

Shift the burden to the state Health Department? YES! EUREKA! THAT’S THE WHOLE POINT OF THESE LAWS. The fundamental point of the state medical marijuana laws is to shift oversight away from the police – or at least to distribute the wealth of regulatory authority and its attendant funding.

I would re-characterize what is colloquially called “Drug Prohibition” as an expression of a fundamental distrust for the healing professions. Students of drug control history know that federal drug prohibition in 1914 commenced a war against physicians over their prescription practices with regard to opiates. The federal Controlled Substances Act vests authority over psychoactive substances in the Department of Justice, i.e. the federal police, not the federal doctors in the Department of Health and Human Services. Marijuana resides in the police part of The State.

The op-ed in its totality, as did NYC Special Narcotics Prosecutor Bridget Brennan’s recent statement, reduces to the implicit claim that the New York State Department of Health is incompetent and cannot administer a medical marijuana program. It states explicitly that the bill will shift the “burden” (i.e. budget and authority) of regulation to the Department of Health; since there is no expressly-stated reason why this shift would be bad we must assume that there is some inherent evil in this shift in authority. (The immediately following statement that “The federal Food and Drug Administration will not participate in testing and monitoring the safety of an illegal drug” deserves its own extended treatment, but suffice it to say for the moment that obviously if the law passes then cannabis will not be an “illegal” drug for purposes of state law, and the federal government has always been free to move cannabis out of Schedule I of the Controlled Substances Act, at which point, when and if the US government will allow someone to sponsor randomized double-blind clinical trials of cannabis, the FDA will be able to regulate away to its heart’s content.)

i get a certain thrill in seeing the recurrence of complete mischaracterizations of the mechanism of the law and inappropriate comparisons with the laws of a different state – and understanding that the Emperor Wears No Clothes: there really is no substantive argument on the other side. Complete and presumably knowing mischaracterization is the sole weapon of the opposition.

Perhaps the most interesting aspect of the op-ed is the multifaceted complaint about the practice of medicine: (a) cannabis will not be dispensed pursuant to a valid prescription, (b) there will not be any examinations of patients by physicians in good standing, and (c) there will be no guidance as to what constitutes a valid medical condition.

(1) Obviously there will be no dispensing of cannabis with a valid prescription – that’s the whole point of Schedule I: no physician may write a prescription for a Schedule I substance and no pharmacist could fill such a prescription. That’s why there are STATE medical marijuana laws, folks. Federal law prohibits prescriptions for cannabis, so the states need to sneak around the federal prohibition.

(2) The assertion that there will be no examination of patients by physicians in good standing must rely on some sort of prophecy. Why will there be no examination of patients by physicians in good standing? Even if many or all of the physician examinations of patients [not preparatory to writing a prescription, of course, but only to “certify” the physician’s professional option as to the utility of cannabis for that patient] do not comport with the standards for the legitimate practice of medicine, why is the Department of Health incompetent to intervene and take appropriate disciplinary action, as it does in any other case of physician misconduct? Because the health care bureaucracy is fundamentally incompetent and cannot be entrusted with managing this threat to the public safety and welfare? Maybe the Department will just need more funding in order to administer the program.

(3) The best, the absolute best one of them all, is the complaint that there is no guidance as to what is a valid medical condition – i.e. one which cannabis can legitimately treat. Let us leave aside the clear implication of this position that there is in fact some medical condition for which cannabis is a valid treatment. Let us turn to the bigger question: is this not why we have doctors? Do we not trust doctors to assess what would be an appropriate therapeutic intervention for a given condition?

No, we don’t. That’s the root of the “War on Drugs,” AKA “Drug Prohibition,” AKA zero tolerance for illegal drug use – what makes drug use “illegal” is a decision by the police as to what constitutes a valid medical use of a drug.

The op-ed continues to misconstrue the proposed law entirely, by claiming that dispensaries will spring up out of control, like in Los Angeles – when actually the law is a conservative approach that requires licensing of distributors before they open for business, like a pharmacy or a liquor store. The Department of Health will be the gatekeeper that grants or denies an application for a license. This regulatory scheme is the exact opposite of the scheme that exists in California. As with the comments by Bloomberg and Brennan, this position expresses either complete ignorance of the terms of the proposed law or a willful mischaracterization – but there is one other possibility. It may be that this position does not express ignorance. Instead it expresses an opinion – the Department of Health will issue licenses inappropriately. The obvious implication is that the Department of Health is incompetent to administer the statute and control over cannabis must remain exclusively in the hands of the police.

It is a sad situation if the directors of and advisors to the Respect for Law Alliance have indeed endorsed a position that operates by completely misrepresenting the operation of the proposed law. It is an even sadder situation if these distinguished persons, including state and federal judges, are saying that the medical profession cannot properly assess and regulate the medical use of drugs and so drug control should be in the hands of police so that they can save the populace from the doctors.